What Two Debts Cannot Be Erased in Bankruptcy

Child Support Cannot Be Discharged Under Any Circumstances

Child support obligations are absolutely protected from bankruptcy discharge. Congress made this decision explicitly, determining that children's welfare takes priority over giving parents fresh financial starts. No exception exists regardless of financial hardship, disability, or any other circumstance.

This protection covers both past-due child support arrears and ongoing support obligations. If you owe $20,000 in back support when you file bankruptcy, you still owe $20,000 when your case closes. The automatic stay does not even stop support enforcement during your bankruptcy. Wage garnishment for support continues while other collection stops.

The policy reasoning is straightforward. Children depend on support payments for basic needs like food, housing, and clothing. Allowing parents to discharge support obligations would shift that burden to custodial parents or public assistance programs. Congress decided that parental responsibility outweighs debtor relief in this context.

Chapter 13 bankruptcy requires that you remain current on ongoing support throughout your three to five year plan. If you fall behind on support payments during Chapter 13, the court can dismiss your case. Support obligations take priority over payments to other creditors.

Alimony and spousal maintenance receive identical treatment. These domestic support obligations cannot be discharged regardless of circumstances. The law treats support for former spouses the same as support for children, recognizing that these obligations often serve similar purposes of meeting basic needs.

Expert insight from Jeffy Gotsz, Bankruptcy Attorney: "If you are struggling with support obligations, address them directly rather than hoping bankruptcy will help. Modification through family court based on changed circumstances is the only path to reducing support obligations."

Student Loans Require Proving Undue Hardship

Student loan debt occupies a unique position in bankruptcy law. Unlike child support, which is absolutely non-dischargeable, student loans can technically be discharged but only by proving undue hardship in a separate court proceeding. This standard is so difficult to meet that the practical result resembles non-dischargeability.

The undue hardship standard requires showing three things under the commonly applied Brunner test. First, you cannot maintain a minimal standard of living for yourself and dependents if forced to repay. Second, additional circumstances indicate this inability will persist for a significant portion of the repayment period. Third, you made good faith efforts to repay before seeking discharge.

The second prong defeats most cases. Courts want evidence that your situation is hopeless, not just difficult. Permanent disability, chronic illness without prospect of recovery, advanced age making career improvement impossible, or other circumstances suggesting permanent inability to pay may satisfy this requirement. Temporary unemployment or underemployment typically does not.

Filing an adversary proceeding to attempt student loan discharge costs thousands of dollars in attorney fees and takes months to resolve. Even with strong facts, success is not guaranteed. Many bankruptcy attorneys decline to take these cases because of low success rates and high client expectations.

Both federal and private student loans require the same undue hardship showing. A common misconception holds that private student loans are easier to discharge. They are not. The 2005 bankruptcy reform extended non-dischargeability protection to private education loans.

Recent Developments in Student Loan Discharge

The legal landscape for student loan discharge may be shifting. The Department of Justice issued guidance in late 2022 encouraging more flexible approaches to student loan cases. Some bankruptcy courts have responded with decisions granting discharge in circumstances that would have failed previously.

These developments do not make discharge easy, but they suggest momentum toward reform. Legislative proposals to make student loans dischargeable through standard bankruptcy procedures have been introduced repeatedly. Political pressure continues from the millions of Americans carrying education debt burdens.

For now, plan based on current law while staying informed about potential changes. If you have substantial student loan debt and believe your circumstances might support an undue hardship finding, consult an attorney experienced in these adversary proceedings before deciding whether to pursue discharge.

Why These Two Debts Receive Maximum Protection

The policy justifications for protecting child support and student loans differ significantly, reflecting different Congressional concerns at different moments in history.

Child support protection dates to the earliest bankruptcy laws and reflects fundamental values about parental responsibility and child welfare. Society expects parents to support their children regardless of financial circumstances. Allowing discharge would harm innocent children and shift support burdens to taxpayers. This protection commands near-universal support across the political spectrum.

Student loan protection evolved more recently and more controversially. Originally, student loans were dischargeable like other consumer debt. Congress restricted discharge incrementally, first imposing waiting periods, then requiring undue hardship showings. The 2005 expansion to private loans reflected creditor lobbying more than coherent policy analysis.

Critics argue that student loan non-dischargeability no longer serves legitimate purposes given the scale of education debt and economic conditions facing graduates. The original concern about graduates gaming the system by filing immediately after obtaining lucrative degrees seems disconnected from current realities where many borrowers face decades of payments they cannot afford.

Defenders argue that dischargeability would increase default rates, causing lenders to restrict credit availability or raise interest rates. They contend that the student loan system depends on non-dischargeability to function. This debate continues without resolution.

Other Debts That Commonly Survive Bankruptcy

While child support and student loans are the most absolutely protected debts, other categories also commonly survive bankruptcy. Understanding the full landscape of non-dischargeable debt helps you evaluate what relief bankruptcy actually provides.

Recent tax obligations typically cannot be discharged. Income taxes from returns due within three years of filing, taxes assessed within 240 days, and taxes where returns were filed late generally survive. Older taxes meeting specific requirements may be dischargeable, making timing an important consideration.

Debts from fraud survive if the creditor proves fraud in an adversary proceeding. Lying on credit applications, obtaining money through false pretenses, or making purchases with intent to file bankruptcy can result in non-dischargeable debt. But creditors must affirmatively challenge discharge and prove their case.

Debts from willful and malicious injury cannot be discharged. If you intentionally hurt someone or damaged their property, resulting judgments survive bankruptcy. DUI-related injury debts are specifically non-dischargeable regardless of intent.

Criminal fines, restitution, and most government penalties survive bankruptcy. Court costs, traffic tickets, and similar obligations remain your responsibility after discharge.

Debts you fail to list in your bankruptcy schedules may not be discharged. Complete and accurate disclosure protects your discharge. List every creditor, even small debts and debts to family members.

Expert insight from Jeffy Gotsz, Bankruptcy Attorney: "Calculate the ratio of dischargeable to non-dischargeable debt in your situation. If most debt survives bankruptcy, the fresh start provides less benefit than if most debt can be eliminated."

Planning Around Non-Dischargeable Debts

Knowing which debts survive helps you develop realistic expectations and effective strategies. Bankruptcy may still provide substantial benefit even when some debts remain.

Eliminating dischargeable debts frees up income for non-dischargeable obligations. If you owe $40,000 in credit cards and $20,000 in student loans, eliminating the credit cards lets you direct those payments toward student loans. The fresh start on dischargeable debt makes surviving debt more manageable.

Chapter 13 offers structured repayment of priority debts like taxes and support arrears. While these debts survive, spreading payment over three to five years may be more affordable than immediate collection. Chapter 13 also stops interest on tax obligations during the plan period.

Timing matters for potentially dischargeable debts. Tax debts become dischargeable after meeting specific timing requirements. If your oldest tax debt is close to qualifying, waiting to file might eliminate debt that would otherwise survive. Your attorney should analyze timing opportunities.

Consider alternatives for student loans outside bankruptcy. Income-driven repayment plans cap federal loan payments at affordable percentages of income. Public Service Loan Forgiveness eliminates debt after ten years of qualifying employment. These programs often produce better outcomes than attempting bankruptcy discharge.

Address support obligations through family court rather than bankruptcy court. If your income has decreased or circumstances have changed, seek modification of support orders. This is the only path to actually reducing support obligations rather than just struggling under them.

Work with a family law attorney if modification seems appropriate. Courts can reduce support when circumstances genuinely change, such as job loss, disability, or retirement. The key is acting proactively rather than simply falling behind.

The Emotional Burden of Non-Dischargeable Debt

Carrying debt that cannot be eliminated creates psychological stress beyond the financial burden. People with non-dischargeable obligations often feel trapped in ways that other debtors do not experience.

Student loan borrowers in particular report feelings of hopelessness about ever being free from education debt. The knowledge that bankruptcy cannot help, combined with balances that grow faster than payments reduce them, creates despair that affects mental health and life decisions.

Child support obligations carry additional emotional weight because they involve family relationships. Parents who cannot pay feel guilt about their children regardless of the circumstances that created inability to pay. This emotional dimension complicates financial planning.

If non-dischargeable debt is affecting your mental health, seek support. Financial counselors, therapists, and support groups can help you cope while working toward solutions. The burden is real, and help is available.

Focus on what you can control. You cannot discharge these debts, but you can manage them strategically. Income-driven repayment for student loans, modification for support, and careful budgeting all help even when discharge is unavailable.

FAQ

Can I discharge child support in Chapter 13?
No. Child support is non-dischargeable in every chapter. You must pay arrears in full through your plan.

What percentage of student loan discharge attempts succeed?
Studies suggest around 40% of those who file adversary proceedings obtain some relief, but very few people attempt discharge.

If I cannot pay child support, will I go to jail?
Possibly. Willful failure to pay support can result in contempt of court and incarceration, though inability to pay is a defense.

Do private student loans work differently than federal?
No. Both require the same undue hardship showing for discharge since 2005.

Can bankruptcy help if most of my debt is non-dischargeable?
Sometimes. Eliminating other debts frees income for non-dischargeable obligations.

Should I attempt student loan discharge?
Only if you have strong undue hardship facts and can afford the litigation costs. Consult an experienced attorney first.